Spear v. State

• Decision Date: 19 January 1899
• Citation: 120 Ala. 351,25 So. 46
• Parties: SPEAR v. STATE.
• Court: Alabama Supreme Court

25 So. 46

120 Ala. 351

SPEAR v. STATE.

Supreme Court of Alabama

January 19, 1899

Appeal from city court of Montgomery; A. D. Sayre, Judge.

George Spear was convicted of resisting the execution of a writ of arrest, and he appeals. Affirmed.

On the trial of the case the state introduced two deputy sheriffs who testified to their going to the house of the defendant with a writ of arrest, and seeking to execute it, and that thereupon the defendant presented a pistol at them, and demanded that they leave his house. The state then introduced in evidence the writ of arrest, which was in words and figures as follows: "The State of Alabama, Pike County. To Any Sheriff of the State of Alabama: An indictment having been found at the Sg. term, 1897, of the circuit court of said county against G. Spear for the offense of carrying a concealed pistol, you are therefore commanded forthwith to arrest," etc. This writ was dated January 30, 1897, and signed, "O. Worthy, Clerk of the Circuit Court of Pike County." The defendant objected to the introduction in evidence of said writ of arrest, upon the ground that it was inadmissible, since it was a "writ of arrest issued from the circuit court of Pike county against G. Spear, and not against George Spear, the defendant." The court overruled this objection, and the defendant duly excepted. The defendant, as a witness in his own behalf, testified that he did not resist the execution of the writ. For the purpose of showing that the indictment returned by the grand jury of Pike county, and on which the writ of arrest attempted to be executed on the defendant was issued, had never been returned out of the circuit court to the judge of the criminal court of Pike county, and filed in the criminal court of Pike county, as required by law, but was still pending in the circuit court of Pike county, the defendant offered to introduce in evidence a certified copy of the indictment returned by the grand jury of Pike county, and also the certified copy of the minute entries of the criminal court of Pike county. The certified copy of the indictment above referred to was as follows: "The State of Alabama, Pike County. Circuit Court, Spring Term, 1897. The grand jury of said county charge that before the finding of this indictment G. Spear, whose Christian name is to the grand jury unknown carried a pistol concealed about his person, against the peace and dignity of the state of Alabama."

D. A Baker, for appellant.

Charles G. Brown, Atty. Gen., for the State.

TYSON J.

The defendant was indicted, tried, and convicted in the city court of Montgomery for resisting officers in the execution of a writ of arrest issued by the clerk of the criminal court of Pike county. By provisions of the act of the general assembly "to establish a criminal court for the county of Pike" (Acts 1888-89, p. 631), it was made the duty of the judge of the circuit court, within 10 days after the passage and approval of this act, to enter an order upon the minutes of his court directing and requiring the clerk to deliver to the judge of the criminal court all indictments for misdemeanors then pending and entered in said circuit court; and upon the transfer and delivery of the same the jurisdiction of the circuit court ceased, and exclusive jurisdiction was conferred in said cases upon the criminal court of Pike county. And all indictments for misdemeanors preferred by the grand jury after its passage were and are to be returned by the clerk of the circuit court to the judge of said criminal court, and filed in said criminal court, and process thereon to be issued by the clerk of that court. This act further provides that the clerk of the circuit court shall be ex officio clerk of the criminal court.

The only question raised and insisted upon in argument by appellant's counsel is that the writ of arrest undertaken to be executed by the officers upon the defendant was void. It can now be regarded as the settled law of this state that an officer charged with the duty of executing process is bound to do so unless the process is void upon its face, or the court issuing it is without jurisdiction. The officer, in discharging this duty, is not bound to inform himself of irregularities in the indictment or other initial proceedings, made the basis for the issuance of the writ. Murphy v. State, 55 Ala. 252. In the case of Brown v. State, 109 Ala. 87, 20 So. 109, Chief Justice Brickell stated the doctrine to be: "As a general proposition, it may be stated that the officer is justified in the execution of the process when it proceeds from a court or magistrate having jurisdiction to issue it unless invalidity appears on its face. He is not bound, and has no authority, to inquire into the regularity or legality in the proceeding prior to its issue."

The first insistence of defendant is that it nowhere appears that the indictment has been filed in the criminal court of Pike county, and that the writ on its face purports to be issued by "O. Worthy, Clerk of the Circuit Court of Pike County," and therefore it must have been issued upon an indictment for a misdemeanor pending in the circuit court of that county, of which that court had no jurisdiction, it having been ousted by the act above referred to establishing the criminal court. The words of this act ex vi termini conferred jurisdiction upon the criminal court, and the mere failure to indorse upon the indictment its filing in that court, if this fact had been made to appear, was a mere clerical irregularity, which could avail the defendant nothing. And again, the fact that the writ was signed by O. Worthy, designating himself as "clerk of the...